What is the professional exemption to overtime pay?

The Fair Labor Standards Act, passed in 1938, requires employers to pay their employers one a half times their regular rate for any hours worked past 40 hours per week. However, this overtime rule does not apply to every employer and employee.

First, the FLSA only covers employees and not independent contractors. Under the FLSA, employees are those workers who are economically dependent on their employers. Second, the Act only covers employers who have workers that are engaged in or affecting interstate commerce. The interstate commerce requirement is interpreted very broadly and includes most employees.

Lastly, for an employee to receive protection from the FLSA and entitle him to overtime pay he must not be an exempt employee. The FLSA exempts employees who occupy certain positions. Among these exemptions is the professional exemption. Within the professional exemption are exemptions for learned professionals, creative professionals, teachers, and the practice of law or medicine.

Learned Professionals

The learned professional exemption applies if the employee is paid at least $913 per week or $47,476 per year, his primary duty is work requiring advanced knowledge in a field of science or learning that is customarily acquired by a prolonged course of specialized intellectual instruction.

The work requiring advanced knowledge must be the employee’s primary duty—that is, it is the principal, main, major, or most important duty that the employee performs. It does not mean that to be exempt the employee must only perform such advanced work, but that the character of his job as a whole is that work. Generally, an employee who spends more than half his time performing work requiring advanced knowledge duties will be exempt.

For example, an employee who spends more time performing advanced work, is paid more than other employees doing non-exempt work, is relatively free from supervision, and who has more importance placed on his advanced duties can be said to have work requiring advanced knowledge as his primary duty. If he meets the other requirements, he will be exempt from overtime.

Work requiring advanced knowledge usually involves using that advanced knowledge in analyzing and interpreting, and is mostly intellectual—it is not manual, mechanical, physical work. Further, the advanced knowledge must be in a field of science or learning such as law, medicine, theology, accounting, or engineering, and is usually a prerequisite for the job.

Creative Professionals

The creative professional exemption applies if the employee is paid at $913 per week or $47,476 per year, his primary duty is work requiring invention, imagination, originality, or talent in a recognized artistic or creative field.

Whether or not creative work is the employee’s primary duty depends on the same circumstances as those described for the learned professional exemption.

Work requiring invention, imagination, originality, or talent is usually met by actors, musicians, composers, conductors, and soloists. Similarly, recognized artistic fields include music, writing, acting, and the graphic arts. Employees who also might meet these criteria include painters who exercise discretion in deciding what to paint and writers who choose their own subjects and complete their works under their own direction.

Teachers

An employee is exempted from the FLSA if his primary duty is teaching, tutoring, instructing, or lecturing for the purpose of imparting knowledge and he works in an educational establishment.

For teachers there is no salary requirement—a teacher does need to make at least $913 per week or $14,476 per year to be exempted from the FLSA’s overtime requirements.

Practice of Law or Medicine

As with teachers, there is no salary requirement for an exemption from overtime when it comes to the practice of law and medicine. If an employee holds a valid license permitting the practice of law or medicine and is actually engaged in the practice of law or medicine, he will be exempt from overtime.

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Robert J. Wiley is Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization. All other attorneys not board certified. Robert J. Wiley is the attorney responsible for this website. All meetings are by appointment only. Principal place of business: Dallas, Texas.